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Censure and removal from office

CENSURE AND REMOVAL FROM OFFICE

                                                                        by

                                               Robert McConnell Productions

We have just witness the end of the trial of the century -- that of the President of the United States. We all know the outcome -- the Senate voted against the President’s removal from office. But during this process we had the opportunity to seriously consider why the founding fathers providing for an impeachment and trial, and what is the meaning of "high crimes and misdemeanors". And because of the marvels of television, we saw most of the proceedings and learned about the rules and procedures that governed the House and the Senate during this process.

In this newsletter we are going to explain how an organization can remove an officer through the trial and process, and explain what a "censure" means. Since many disgruntled Congressmen and Senators kept wanting to censure instead of impeach and take to a trial.

CENSURE

One misconception that kept appearing in the debate was the idea of "censuring"
the president.

What does "censure" mean and what is its purpose? George Demeter in his book, Demeter’s Manual of Parliamentary Law and Procedure has a very good discussion of censure both in terms of government and in terms of organizations. A censure is an assembly’s expression of displeasure concerning the conduct of either a member or of an officer. It is a warning and the next step would be either suspension, removal or expulsion.

So in the case of the President of United States, it would now not make sense to censure him after he has been acquitted of charges.

PROCEDURES OF CENSURE

The motion to censure is a main motion; it needs a second; it is debatable and amendable. It is subject to all subsidiary motions. It is usually brought up under new business or under for the good of the order. A quorum must be present and it takes a majority to adopt and a vote by ballot is advisable. A member may debate his censure but he cannot vote. The same rules apply to presiding officers and other officers being censured. A member or officer cannot be censured twice for the same offense. The next step would be suspension, removal or expulsion.

When censuring the president, the vice president presides. If the vice president does not want to preside, then the secretary presides. These officers preside from their position and not from the president’s position. If both officers refuse to preside, then the member making the motion presides from his place on the floor. The president can debate the censure but cannot vote.

A secret ballot vote is advisable when taking the vote on censure.

Reasons for Censure of members: Demeter lists the following: "persistent violation of the rules; assaults on the floor; slanderous or insulting remarks such as calling a member ‘lair’ or ‘thief’, etc.; disorderly conduct; reference to personalities; misconduct in office; neglect of duty; disobedience to instructions by delegates or committees; threats to hurt a member of the organization; defrauding or cheating the organization; bribery; conspiracy; larceny; misuse of funds; false charges and accusations; divulging the secret password; violation of the oath; disloyalty; secession; vilification of a member or the presiding officer or the organization; willful destruction of organization property; absenteeism; and many others."

Reasons for censure of presiding officers. Demeter lists the following: "Serious grounds for censure against presiding officers (presidents, chairmen, etc.) are, in general: arrogation or assumption by the presiding officer of dictatorial powers -- powers not conferred upon him by law -- by which he harasses, embarrasses and humiliates members; or specifically: (1) he refuses to recognize members entitled to the floor; (2) he refuses to accept and to put canonical motions to vote; (3) he refuses to entertain appropriate appeals from his decision; (4) he ignores proper points of order; (5) he disobeys the bylaws and the rules of order; (6) he disobeys the assembly’s will and substitutes his own; (7) he denies to members the proper exercise of their constitutional or parliamentary rights."

These same reason could be applied to a board of directors that refuse to call meetings, carry out the memberships direction, and work behind the scenes. However, if members want to censure members of the board it should be done one member at a time. In other words, a motion to censure is not usually applied to a group of people.

It is the opinion of this author that if there is a serious problem in the organization, go and talk to the member or officer first. In the book of Matthew, Jesus gave us a wise solution to organization problems. In Matthew chapter 18, versus 15 to 17 it says this: "... if your brother wrongs you, go and have it out with him at once -- just between the two of you. If he will listen to you, you have won him back as your brother. But if he will not listen to you, take one or two others with you so that everything that is said may have the support of two or three witnesses. And if he still won’t pay any attention, tell the matter to the church. And if he won’t even listen to the church then he must be to you just like a pagan -- or a tax-collector."

So if the president is following rules, and being tyrannical, go talk to him, -- take him to lunch. Offer to help him understand the procedures. If he still continues, then take several more members with you, then if he doesn’t listen, take it to the entire membership. This would be the time to censure. If he still continues after a censure then it is time to remove from office. And if a president or member continues to be a problem, then it may come to removing that person from membership.

REMOVAL FROM OFFICE

 

THE INVESTIGATING COMMITTEE

If there is no provision in the bylaws from removing an officer by rescinding the election or by another method, then the membership has to do this by a trial. Robert’s Rules has very specific procedures for a trial whether it is for an officer or for punishing a member who has committed wrong.

Robert’s says that any society has the right to enforce its standards for membership and the right to investigate the character of its members to enforce its standards. Let’s say an organization has high moral standards for membership which includes such things as no drinking of alcoholic beverages, no using profane language, no smoking of tobacco, and no licentious activities.

Someone has heard that a person who really looked like the president was seen with a woman who was not his wife at a tavern, drinking ale, swearing at the bartender and other customers, and smoking Cuban Cigars.

At the next meeting, a member instead of getting up and accusing the president of wrong doing, (if he has not gone to the president to see if this is true) should make a motion to form an investigating committee to investigate rumors affecting the character of the president. In the motion he should include the names of the committee members. (These people should be selected because they have integrity and good judgment). The motion should also include that the committee report resolutions covering its recommendations if the rumors prove to be true.

This should be done when non members are not present. If any non-members are present, the member should move to go into executive session to propose this motion.

To protect the innocent the motion should avoid details as much as possible. If a member would get up and make a motion that actually preferred charges, unsupported by an investigating committee’s recommendation, another member should move to postpone the motion indefinitely. Stating that if it is adopted he will make a motion to form an investigating committee.

Since all this has to do with the president, he should step down from the chair and let the vice president preside during this discussion.

When the investigating committee meets it has no power to require either the accused or other members to appear before it. It should definitely meet with the accused and hear his side of the story. All business conducted in the committee is confidential and should be discussed with no one outside of the committee.

After the committee investigates, it should do one of two things.

1. If it finds that there is no substance to the charge, (in this case it turns out to be someone who looked the like the president) then the committee should present a resolution exonerating the president.

2. However, if it finds substance to the charges, then the committee should report its findings in writing. Every committee member who agrees with the report must sign it. The report should "outline the course of its investigation and prefer charges" (p. 648 RONR). The resolution proposed by the committee should state the charges and then who should act as managers for the society. They should also include the date and time of the trial. Robert’s says a thirty day notice is reasonable time for the accused to present his defense.

The resolution should include in it the charge and specifications of what the accused is alleged to have done. In the example given, the charge would be that he acted in a manner that was unworthy of a member. The specifications would be that he was at the X tavern, drinking, smoking, using profane language and with a woman that was not his wife.

Here’s an example of a resolution that the investigating committee might propose:

Resolved, that when this meeting adjourns, it adjourn to meet at 7 pm, Saturday, March 6, 1999.

Resolved, that the president be, and hereby is, cited to appear at the adjourned meeting for trial, to show cause why he should not be remove from office of this Society on the following charge and specification.

Charge. Conduct unworthy conduct for the president of this Society.

Specification 1. That on the evening of January 2nd, 1999 the president was seen at Tavern X with a woman not his wife, drinking alcoholic beverages, and smoking a Cuban Cigar.

Specification 2. On this same evening he was using profane language at the bartender and customers, baiting them into a fight.

Resolved, that Mr. Justice and Mrs. Honorable act as managers for the trial.

This is a main motion. The date and time of the meeting and kind of meeting is amendable. The motion is debatable and other subsidiary motions can be proposed concerning this resolution. It takes a majority to adopt.

If a regular meeting comes before the adjourned meeting then the resolution should state that it be a "special meeting". If the assembly is large, or the trial is going to be long and troublesome or scandalous, then the resolution should recommend that a committee hear the trial and report its findings to the assembly.

In the trial the president must be found guilty of a charge before the penalty is imposed.

The managers are to be members of the society. Their task is to present evidence against the accused, but they are not to act as prosecutors, but rather to strive that the trial will get at the truth and the outcome will be just.

NOTIFICATION OF THE ACCUSED

If the assembly adopts the resolution, then the secretary should immediately send a letter to the accused notifying of the charges. This should include an exact copy of the resolution as adopted by the society. The letter includes the date, time, and place of the trial, and directing him to appear. The secretary should send him the letter by registered, return receipt requested. See ROBERT’S RULES OF ORDER NEWLY REVISED 1990 ed. page 651 for example of letters to be sent.

THE TRIAL

The trial is a formal hearing which can be done before the entire membership or a committee selected by the membership for this purpose. This is an opportunity for the entire membership to hear the findings and for the accused to defend himself. The accused is allowed to be represented by counsel (but not necessarily an attorney) who is a member of the organization. For the accused to have an attorney who is not a member of the society, the society must vote to allow this. The society is represented by managers who are also members of the organization which present evidence against the accused. Any nonmembers who consent to appear as witness can only be in the room when testifying.

If the accused does not attend the meeting, the members can proceed with the trial as long as the accused has been notified by registered letter.

ORDER OF THE TRIAL

The presiding officer calls the meeting to order. He should then state that the proceedings are held in executive session which means everything is now confidential and can not be discussed with anyone outside the meeting. Any member who breaks this rule is subject to penalty.

The presiding officer asks the secretary to read from the minutes the resolutions adopted relating to the trial. The chair then asks the secretary if the accused was furnished with a copy of the charges. The chair announces the names of the managers and asks the accused if he has counsel.

The chair then asks the secretary to read the charges.

After the charges are read, the chair then asks the accused how he pleads. If he answers guilty, there is no need to proceed with the trial. The members can proceed with discussion and vote on penalties. If he pleads not guilty, then the members proceed with the trial in the following order:

1. Opening statements: by the managers first, then the accused.

2. Managers call witnesses for the society.

3. Accused calls witnesses

4. Rebuttal of witnesses; first by managers; then the accused

5. Closing arguments. First by managers; then by the accused.

After closing arguments, the members of the assembly have the right to ask questions of witnesses. All questions and remarks should be made to and through the presiding officer. However, when given permission they may ask questions of the witnesses without going through the chair.

6. After closing arguments the accused leaves the room. All witnesses and defense counsel, if members, remain for discussion and the vote.

7. The chair presents each charge and specification for a vote before the members. Each charge and specification is open for discussion. The specifications and charges can be amended to conform with the evidence presented. Each charge and specification is voted on individually, but several votes can be delayed and voted on in a single ballot. These are adopted by a majority vote.

If the accused is found guilty of several of the specifications but not the charge, then a lesser charge should be proposed and voted on.

If the accused is found guilty, then the managers should make a motion proposing the penalty. This motion is amendable and debatable. It is adopted by a majority vote.

If the penalty is removal from membership, it takes a two thirds vote.

After all is decided, the accused is brought in and the presiding officer tells the accused the results of the vote and what penalties are incurred if any.

This is a very serious step in any organization. A trial can leave a great distaste in the membership and some could even leave the organization if they feel in anyway that what has been done is unfair or unjust. Members should carefully weigh the evidence and be morally convinced that great harm has been done to the organization before finding another member guilty.

Finally, always try to work this out in other ways before having a trial.